New York State Court of Claims

New York State Court of Claims

KIRKPATRICK v. THE STATE OF NEW YORK, #2006-013-508, Claim No. 102395


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, filed on May 2, 2000, seeks damages for an incident occurring on March 14, 1999 at the dental office at Wende Correctional Facility (Wende), sounds in dental negligence/malpractice, and seeks $50,000 for pain and suffering and $50,000 for medical malpractice. During the trial, the Defendant made a motion to dismiss that part of the claim which sounded in medical/dental malpractice, primarily due to the lack of an expert witness, and that motion was granted. Accordingly, the only remaining cause of action is one that sounds in dental negligence.

According to the testimony, in 1998, Claimant had a dental procedure commenced at Orleans Correctional Facility (Orleans), where seven of his teeth were removed. Claimant thereafter became ill with an unrelated but very serious medical condition and was taken to Strong Memorial Hospital for a period of two months, prior to the completion of the dental work, to wit, the replacement of the extracted teeth. However, upon his discharge from the hospital, Claimant was not returned to Orleans, but was sent to Wende. Claimant contends that the dentist at Wende, rather than simply working on the replacement of the extracted teeth, wanted to remove all his remaining teeth.

The primary focus of this claim is Claimant's assertion that he was not provided with dentures/false teeth for the seven teeth already removed during the period of some 22 months while he was housed at Wende between March 1999 and December 2000, and damages resulting therefrom.

Claimant suggests that the dentist at Wende was prejudiced, because of Claimant's illness. He refused to allow the dentist at Wende to perform any additional extractions because Claimant felt that such extractions were not necessary. Claimant was called back periodically to the dental office at Wende for cleaning, etc., but each time the dentist attempted to persuade him to allow additional extractions, because Claimant alleges that he said "it would be easier for him." The dentist purportedly failed to arrange for such false teeth for this entire period while attempting to persuade Claimant to allow further extractions.

At one point, after alleged pressure from a physician at Wende, Claimant had allegedly agreed to allow the extraction of tooth Number 13, but the next day when he was in the dental office for such extraction, he withdrew his consent because, in his opinion, tooth Number 13 "did not need to be extracted." Indeed, Claimant testified that he still had tooth Number 13 in his mouth at the trial of this claim, attempting to show that the dentist was trying to extract healthy teeth. When Claimant declined to permit that extraction, the Wende dentist allegedly announced that he was "through with you." So for the period of his incarceration at Wende, no false teeth were provided and no preparations for such procedure were ever started. In December 1999, Claimant was transferred to Attica Correctional Facility (Attica), where within 90 days the Attica dentist allegedly started the process, and eventually he received the partial upper and lower dentures to replace those seven teeth extracted at Orleans some years earlier.

The essence of this claim is for negligence related to that extended period of time of some 22 months while he was housed at Wende when the dentist failed to start the process for the false teeth. Claimant testified that he saw the Wende dentist at six month intervals for teeth cleaning, but also on other occasions, with an escort, to pursue the partial dentures. During this period of delay, because of the stress relating to this situation, and his other serious medical condition that was life threatening, Claimant asserts that he was on a liquid diet, couldn't chew solid food, lost weight, and suffered mental anxiety, and this forms part of his claim for damages. I note here that there is no claim that any healthy teeth were indeed extracted, but merely that Claimant suffered injury and damages for the period at Wende when the dentist did not proceed with the ordering of his partial dentures.

Claimant filed several grievances relating to the lack of attention to this matter at Wende (Exhibit 1). Appended to Claimant's demand for a bill of particulars (Court Exhibit 1), are inmate grievance complaints dated February 16, 2000, February 22 (hard to read the exact day), 2000, February 23, 2000 and March 17, 2000. All of these grievances seem to encompass the subject of this claim. On February 25, 2000, in Grievance No. WDE-14543-00, the Superintendent at Wende stated that on three occasions Claimant refused treatment when scheduled to see the dentist and held that "[t]he Dentist is responsible for determining the course of dental treatment that you require" which could not be accomplished if Claimant refused to see the dentist (Claimant's Exhibit 1).

A similar grievance dated February 23, 2000 went to the Inmate Grievance Resolution Committee (IGRC), and in a response dated March 17, 2000, it recommended that the Claimant be given dentures and that his medical condition should not be the factor for which the dentist denies treatment. Ultimately this grievance was heard by the Inmate Grievance Program Central Office Review Committee (CORC), where it was unanimously denied on May 3, 2000 (see Court's Exhibit 1), and the CORC advised the grievant to follow the treatment plan outlined by the dental staff, and that there was not sufficient evidence to substantiate any malfeasance by the employees.

None of these grievances or their results support a finding of dental negligence. All they show is that Claimant filed grievances complaining about the dentist. They have no probative value in ascertaining whether the dentist, and hence the Defendant, engaged in any culpable conduct.

Deacon Timothy T. Maloney had escorted Claimant to the Wende dentist's office on some four or five occasions, as well as having numerous independent visits with the dentist over a six to eight month period, all regarding this issue. His involvement focused in large part on medical concerns that Claimant was not eating and that factor, coupled with his medical condition, put his life at risk. At one point, according to Deacon Maloney, the dentist had agreed to resume the original Orleans plan, but that when Claimant did appear, there was a disagreement between him and the dentist, at which point the dentist purportedly told Claimant that he was through with him.

Dr. William Dawson, the Dental Director at Attica and the Western Region Dental Director for the Department of Correctional Services (DOCS), encompassing ten correctional facilities in that region, testified for the Defendant. Dr. Dawson reviewed Claimant's dental records (Exhibit A), and noted that on October 21, 1998, the seven extracted teeth were periodontally involved, and had a hopeless prognosis. The records show that on March 9, 1999, Claimant was examined by the dentist at Wende for the first time after his transfer on February 12, 1999. According to these records, Claimant was seen at the dentist's office either by the dental hygienist Maureen Keller or Dr. William S. Mayes, the dentist, at least on April 26, 1999 (after Claimant failed to show on April 12, 1999), on May 27, 1999, on September 22, 1999, on November 22, 1999 (when nine of Claimant's x-ray films were reviewed), and on February 7, 2000.

Indeed, contrary to the testimony of Claimant, and upon review of Claimant's dental records for his entire time at Wende, the only tooth that Dr. Mayes recommended extracting was tooth No. 29 on February 7, 2000, not all of Claimant's remaining teeth. On the next day, February 8, 2000, when Claimant had initially agreed to allow extraction of tooth No. 29, the chart notes that the patient "became belligerent", refused to cooperate and walked out of the dental office. Dr. Dawson opined that Claimant's dental care and treatment was within the standards of care for patients being treated in DOCS' facilities. He noted that there was a disagreement between Claimant and Dr. Mayes, and Claimant was entitled to control his own dental care, and Claimant rejected the dental advice to extract a badly infected tooth.

I reiterate here that the review of the dental records revealed no plan or suggestion to extract all of Claimant's teeth. More specifically there was no purported plan to remove tooth Number 13, which Claimant suggested was a healthy tooth which Dr. Mayes had wished to extract.

Moreover, Dr. Dawson opined that Claimant's loss of teeth and general dental condition would not have prevented Claimant from chewing his food. He also opined that it was proper dental treatment within the accepted standard of care not to have provided dentures to Claimant, consistent with DOCS policy that all restorative work be completed before the preparation of dentures, and that it was only after Claimant had restorative work done on several teeth after his arrival at Attica in December 2000, that his dentures were prepared, consistent with DOCS policy.

On January 11, 2001 there is a notation at Attica by Dr. Heinzerling, the Attica dentist, reviewing Claimant's general dental condition, noting his previous extractions, his poor dental hygiene, his emphatic rejection of any further extractions, and an assessment that Claimant should be eligible for partial upper and partial lower dentures, if he is compliant with treatment and dental hygiene. On February 11, 2003 there is a request for the construction (fabrication) of the partial upper and partial lower dental prosthesis, which Dr. Dawson opined was within the proper standard of care (Exhibit A, pg. 40).

Initially, it is necessary to determine whether Claimant's allegations were based on a theory of dental negligence or on a theory of dental malpractice. The theory of dental negligence is relegated to cases where the alleged negligent acts are readily determinable by the trier of fact based on common knowledge. However, when the propriety of the treatment received is called into issue, the more specialized theory of dental/medical malpractice is applicable (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
In a medical/dental malpractice case, Claimant has the burden of proving that the medical provider did not possess or did not use reasonable care or best judgment (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804, supra). Moreover, the Claimant has the burden of proving a deviation from accepted standards of care and must produce evidence that the deviation was a proximate cause of the injury sustained. To meet this burden and to make a prima facie case of medical/dental malpractice, Claimant is required to present expert medical testimony (Macey v Hassam, 97 AD2d 919; Kennedy v Peninsula Hosp. Center, 135 AD2d 788). Since no such expert testimony was presented, Claimant failed to establish a prima facie case of medical/dental malpractice, and I dismissed that part of his claim which sounds in medical/dental malpractice.
Finally, to the extent that this claim could be construed as containing allegations based upon medical/dental negligence, I find the proof lacking in this regard as well. Any alleged negligent omissions or commissions by State caregivers must be readily determined by the fact finder using common knowledge without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, supra at 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric lightbulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, supra), and other similar circumstances.
There was nothing in the evidence to establish negligence on the part of the dental providers, or to establish that anything done or not done by such providers caused or contributed to any alleged injury sustained by Claimant. The testimony of Dr. Dawson, reviewing the entirety of Claimant's dental records from his initial intake to the provision of his partial upper and lower dentures, demonstrates to me that Claimant received proper dental care and that any delay in the ordering of the partial dentures stemmed from Claimant's resistance to requisite restorative work on his other teeth, which necessarily had to be completed first.

Moreover, even if there was a delay, Claimant has failed to establish that he sustained any compensable injury. Indeed, his assertions that he could not eat or chew because of his missing teeth were specifically disputed by the Defendant's expert dentist. Claimant presented no proof of any injury or damages which he sustained. In sum, Claimant has failed to establish a prima facie case (
Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941; Wells v State of New York, 228 AD2d 581 and Quigley v Jabbur, 124 AD2d 398).
Accordingly, the claim must be and hereby is dismissed.

All motions not heretofore ruled upon are now denied.


March 8, 2006
Rochester , New York

Judge of the Court of Claims